REALity June 2019

Killing People Efficiently

With both capital punishment and physician assisted suicide, the object is the same – to kill an individual efficiently.  Canada abolished capital punishment in 1976.

In those jurisdictions in the United States where capital punishment is legal, medical societies prohibit physicians from participating in this process of death.

In contrast, in those jurisdictions where assisted suicide is legal, physicians are the key agents in the death procedure.  The difference between the two types of executions is that capital punishment occurs without consent, whereas, with assisted suicide, consent is supposedly an essential part of the process.

Unfortunately, basing the validity of the induced death on consent is becoming more and more hazy.  For example, in the Netherlands and Belgium, which legalized assisted suicide in 2002, a shocking number of assisted deaths are occurring without valid consent.  This has especially been the case since these two countries allowed assisted suicide for the mentally ill and also in cases of an advanced consent.  In regard to the latter, at the time of death, nobody knows whether the patient has actually consented to his death. There are alarming stories, such as a woman in the Netherlands who signed an advanced consent and who later acquired dementia.  She physically resisted a legal injection by a doctor and had to be held down to complete the lethal injection, which she obviously opposed at that later date.

Research published in the New England Journal of Medicine (NEJM, March 19, 2015), on Belgian euthanasia practices, indicates that in the Flanders region of Belgium, assisted suicide takes place without consent in at least 1.7% of the deaths.  This represents more than 1000 deaths.  It is curious that although Belgian law prohibits capital punishment, according to the magazine, “Knack”, in an article dated January 2, 2019, by Jan Lippens, prisoners convicted of heinous crimes and unlikely to be released, were allowed assisted suicide by lethal injection.  Using assisted suicide as a cover for the death penalty was never the intention of the law.  Obviously, these prisoners had lost hope and a purpose in life.  The same applies to those with depression and other mental illnesses.  They need care and therapy, not death, whether prisoners or patients.

In the Netherlands, patients have been killed by assisted suicide even when there is no record of a prior request from the patient.  In short, the legal requirement of consent is unclear in these two countries.  For example, a study in the Netherlands found that in 2015, 23% of the assisted deaths were not reported, and 431 assisted deaths were done without explicit consent.

In the province of Quebec, which has had physician assisted suicide since December 2015, 10% of these deaths were not administered according to the law, either because of incomplete paperwork or because the law was ignored.

In regard to capital punishment, there is usually an expectation that executions be “humane”, and this includes the right of the prisoner to be unconscious at the time of death by lethal injection.  In executions of prisoners by hanging or electric chair, death is definite.  In some capital punishment cases by lethal injection, however, the prisoners have been awake but paralysed at the point of death, arguably making the execution a “cruel or inhumane” punishment, which could be in violation to the 8th Amendment of the U.S. Constitution.  However, the U.S. Supreme Court thinks otherwise.  In November, 2018, the court handed down a decision in a case brought forward by a death row prisoner in Missouri who requested he be gassed to death in order to reduce pain rather than be given a lethal injection as was the state’s execution protocol.  The court held that the 8th Amendment did not guarantee a prisoner a painless death stating, “that is a luxury not guaranteed to many people”.

There is an emerging consensus that anaesthetic agents used, whether in capital punishment or by physician assisted suicide, are not equivalent in their ability to induce unconsciousness, as each general anaesthetic acts on its own specific target, and also affects individuals differently.  Also, some individuals are susceptible or resistant to different medical aids in dying.  The literature concerning US capital punishment indicates that, although the same medical agents are used in physician assisted suicide, they fall well short of satisfying the requirement of achieving unconsciousness of the prisoner at the point of death.  The lesson from these unfortunate experiences of carrying out capital punishment is that unconsciousness in assisted dying by consent may not be attained by a patient who may, instead, experience trauma and distress during the procedure.